Creating a Takedown case using DMCA.com

Before creating a DMCA Takedown Notice

The first thing you need to establish before sending out your DMCA takedown notice is whether or not you have grounds to file one.

Take into consideration the following:

Fair Use

There is a doctrine in the United States copyright law called “Fair Use” which allows people to use your content without your permission. Fair Use is now widely accepted in most countries around the world. It allows the limited use of copyrighted material without requiring permission from the copyright owner. Items considered Fair Use would be commentary, criticism, news reporting, research, teaching or scholarship.
It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

This is important because if a smaller photo of yours is used or a few words out of an entire document is used this could fall under Fair Use depending on the site and the use. If someone were to take a paragraph of your work, or a site has copied your entire site or pictures, and they run a business profiting from your copyrighted work, then most likely its copyright infringement. It is usually very obvious when you see how your work is being used whether the content is being used under the Fair Use criteria or for profit.

Trademark vs Copyright

It is very easy to confuse copyright infringement with trademark infringement as they are both intellectual property, but refer to different things.

Copyright as defined by the US Copyright office:

"protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."

Trademark as defined by the US Patent and Trademark Office:

"A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."

To make this a little clearer copyright infringement would be if the text or images from your site have been copied from site www.yoursite.com and placed on www.theirsite.com . A possible example of trademark infringement would be the name of www.yoursite.com has been taken and manipulated to www.your-site.com although they may embody the same concept but none of the actual content of your site has been used. The intention is often to drive traffic to their site and not yours.

Photographs

This is a major problem on the net. Having your photos stolen, and it can be even more embarrassing if they are private photos you never intended on having released to the public.

Things to consider:

• Did you shoot the pictures or videos for a website?

• Were you paid for the photos or videos you shot?

• Did you sign a model release?

Unfortunately if any of these apply you will have to contact the owners and possibly work out a deal with them. When you signed a release, you gave them permission to use your image. Do not send a DMCA takedown notice if you consented or were compensated for the photo shoot. We've had many males and females contact us in the past who have wanted to have their pictures removed even though they signed a model release and were paid.

If your private photos are leaked to the internet and you have not given the websites permission to use your photos you have every right to have the content removed.

Parts of a Properly Formatted DMCA Takedown Notice

Now that you have determined that you do have a copyright infringement case there are several parts to a DMCA takedown notice.
The 7 Basic Parts of the DMCA takedown notice:

1. The SUBJECT

2. IDENTIFY who you are

3. EXPLAIN why you are sending a DMCA Takedown Notice

4. SHOW proof of the copyright

5. Good faith statement

6. Perjury statement

7. Electronic Signature and personal information

Part 1. The SUBJECT

Not every site you send a DMCA Takedown Notice to will know what the DMCA is, but almost everyone knows what a copyright is. We generally recommend putting the word “Copyright” into the subject line when you send a DMCA Takedown Notice. If “Copyright” is clear in the subject, you are guaranteed to get a better response.

i.e. DMCA Copyright Infringement Notification. This will surely get the website owners attention.

Part 2 - IDENTIFY who you are and where you are from

Clearly identifying who you are is one of the most important items in your DMCA takedown notice. In the body of the email that you send to the website and the ISP it should be clearly stated that you are either the copyright owner or working on behalf of the copyright owner.

If you are the copyright owner it may look like this:

My name is Joe Smith from MyCompanyName and I am the copyright owner of the information that is currently being infringed upon at your website. Please find attached a copy of the official DMCA Takedown Request.

If you are NOT the copyright owner it may look like this:

My name is Joe Smith from MyCompanyName and on behalf of the copyright owner Jane Doe of TheirCompanyName, I am sending a DMCA takedown notice to your website.

Note: You do NOT need to be the copyright owner to send a DMCA takedown notice as long as you have permission to send a DMCA takedown notice from the owner or company you are sending it for and you state that fact.

Part 3. EXPLAIN why you are sending the DMCA takedown notice

When sending your email to the infringing website you should note the following:

This letter is an official DMCA takedown notification under the provisions of the Digital Millennium Copryight Act (DMCA) to have the infringing content removed immediately from your website.

You will also want to send a separate email to the hosting ISP as well so you should include this:

Please be advised that the law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing content upon receipt of this notice. Non-compliance may result in a loss of immunity for liability under the DMCA.

Most website's do not request this statement, but from our experience adding the statement to the hosting ISP’s notice will get them working a lot faster in as it shows you are knowledgeable about the DMCA.

Part 4. Showing Proof of the copyright

This is not always clear, as you most likely do not have an actual copyright filed with the government, but that does not matter. You can still send a DMCA and even file a copyright infringement in the court of law WITHOUT having a registered copyright.

Hosting ISP’s do not always require that you ‘show proof’ of copyright ownership as by signing the statements as noted in Parts 5 & 6 below you are making a good faith statement and perjury statement that the information you are sending is correct.

When sending a DMCA takedown notice, the hosting ISP you are sending it to will most likely require that you show/compare what has been copied, but they almost never require you to prove you are the actual owner. But if you have the proof and you add it to the DMCA takedown notice it will make your case that much stronger as it will show the infringing website that you are the owner of the content and it will show the hosting ISP that you mean business.

Do not let anyone say to you "prove to me you are the owner of the copyright". You do not have to when filing a DMCA, but if you are not the actual copyright owner or have permission to work for the company who or person who owns the copyright you can be held liable in court for sending a fake DMCA.

Hosting ISP’s receive DMCA takedown notices quite often, and almost all of the large ones have dedicated lawyers or a legal department on staff to handle them. Their job is to remove content that violates copyrights as fast as possible. The basic reasoning for hosting ISP’s to use a DMCA system is that DMCA process gives the hosting company time to remove the copyright violation before they become liable for the hosted material.

Although there is no defined amount of time, the hosting ISP’s job is to figure out if an infringement is occurring and to remove it. The faster you can provide proof to the hosting company the more likely you will get the content removed. This is a tried and proven system to work. The faster you can help the hosting company do their job, the faster their responses to their DMCA takedown notices. Remember, an infringing website can always send their hosting company a DMCA rebuttal, but if you can show proof their rebuttal will not mean much.
If you do not have a copyright you can show them, there are ways you can help state your case for example you can show them the date of the registration of the domain name. If you have a domain name that was registered before the other person registered, it doesn't always prove that you are the copyright owner, but it can help prove your point.

Part 5 & 6 - Good Faith and Perjury STATEMENTS

Note: These statements are included in the DMCA Takedown Notice template that is generated through the Protection Pro Toolkit.

After showing proof, you want to wrap up your DMCA takedown notice. There are 2 statements you must make, which will take away the hosting ISP companies liability and therefore make you liable if you are sending a false DMCA takedown notice. Remember if you send a false DMCA to have a competitor’s website shut down, or if you send a DMCA takedown notice spitefully without any copyright reasons, you can be held liable in the court of law for financial and legal damages! DMCA takedown notices should only be used for copyright reasons, not because you want to cause damage to someone's business!

You must state: “I hereby confirm that the information in this DMCA notification is accurate.” and, “UNDER PENALTY OF PERJURY, that I am the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"

These 2 statements make you claim that you are/work for, or have rights to send a DMCA, and that you claim everything in your DMCA is true.

Part 7. – Electronic SIGNATURE

Note: Your electronic signature will be added to the bottom of the DMCA Takedown Notice template and is your signing authority that everything you are claiming and have written to be true.

When signing your email it’s advisable to use “Regards,” or “Sincerely,” as it shows that you are professional and respectful.

Additionally the prior 7 Parts of a DMCA Takedown Notice are everything you will need to file a DMCA takedown notice. This is above and beyond what is needed, but you will see that by including all of these extra pieces of information it will help you in your conquest of getting your copyrighted material removed.

Included in your DMCA Takedown Notice template is also the following line:

Please send me a prompt response indicating the actions you have taken to resolve this matter as soon as possible.

Although this is not required we have found that by adding this we have seen up to a 55% faster increase in the response from the hosting ISP.